You and Your Rights: Maintenance

Summary

  • Both parents must pay a child maintenance sum according to their earnings
  • Every child has a right to maintenance, regardless of whether his or her parents have ever been married
  • When claiming child maintenance, it is important to provide documentation both of earnings and expenses
  • Any parent refusing to pay child maintenance runs the risk of receiving a prison sentence
  • A parent being paid child maintenance is still eligible for social grants

 

Your Rights

What is maintenance?

Child maintenance is the ongoing legal obligation of parents to make regular payments to sustain a child or children (often after a divorce). All children have the right to receive maintenance even if the parents were never married.

Who must pay maintenance?

The Maintenance Act 99 of 1998 and the Children’s Act 38 of 2005 say both parents must pay maintenance. How much they must each pay is dependent on how much they earn. The amount is decided on by the courts and takes into account the monthly earnings of both parents.

How can you claim maintenance?

Go to your nearest magistrate court!

The golden rule is that both parents must pay maintenance. So when one parent refuses to pay, the parent who has custody of the child can apply for maintenance by following these steps:

  • Every Magistrate Courts is also a maintenance court and the prosecutor in that office is also the maintenance officer.
  • The clerk of the court will help you fill out a form that will ask you about the child’s expenses. Bring along proof of how much you earn and the receipts of expenses for the child like school fees, rent, food, medical care, clothes etc.
  • The maintenance officer will then send a notice (which is a written letter) to the other parent for a maintenance meeting or investigation.
  • A date will be set for both parents to come to court for a meeting to agree on how much maintenance should be paid.
  • If the other parent doesn't show up for the meeting, the maintenance officer can recommend an amount and forward it to a prosecutor to enforce with a court order.

What happens if you can't agree on how much maintenance should be paid?

The Children’s Act says that a pre-trial mediation conference can be held to resolve any maintenance dispute. This means that an independent officer will sit and mediate between the two parents and try to resolve the  maintenance issuen before it goes to trial.
What happens if one parent refuses to pay or stops paying maintenance?

The payment of maintenance can be enforced by a court order. The court can instruct the parent's employer to deduct the monthly amount directly from his or her salary and into the bank account of the parent or someone else.

A parent who outright refuses to pay any child maintenance runs the risk of having personal possessions seized and sold, with the funds raised going to the person who has custody of the child or children.

As the non-payment of maintenance is a criminal offence, parents that refuse to pay run the risk of facing a prison sentence.

What documents do you need to apply for maintenance?

  • An Identity document;
  • The birth certificate of the child;
  • Where appropriate, a copy of your divorce order;
  • Proof of your income (like a payslip)
  • Proof of all the expenses related to raising your child or children, including school fees.

Can you get a social grant if you receive maintenance?

YES, but only if you qualify under the means test for a Child Support Grant. Any maintenance you receive will be included as part of your income for the purpose of the means test. Foster Care parents are also able to apply for maintenance.

How is maintenance paid?

It can be paid into the receiving parent or guardian’s bank account OR it can be paid to the magistrate's court that made the order. The receiving guardian can then collect the money from the court.